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Has the United States Anti-Doping Agency Gone Too Far - Analyzing the Shift from Beyond a Reasonable Doubt to Comfortable Satisfaction

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Has the United States Anti-Doping Agency Gone Too Far - Analyzing the Shift from Beyond a Reasonable Doubt to Comfortable Satisfaction Volume 13 Issue 1 Article 6 2006 Has the United States Anti-Doping Agency Gone too far - Analyzing the Shift from beyond a Reasonable Doubt to Comfortable Satisfaction Laura S. Stewart Follow this and additional works at: https://digitalcommons.law.villanova.edu/mslj Part of the Entertainment, Arts, and Sports Law Commons Recommended Citation Laura S. Stewart, Has the United States Anti-Doping Agency Gone too far - Analyzing the Shift from beyond a Reasonable Doubt to Comfortable Satisfaction, 13 Jeffrey S. Moorad Sports L.J. 207 (2006). Available at: https://digitalcommons.law.villanova.edu/mslj/vol13/iss1/6 This Comment is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Jeffrey S. Moorad Sports Law Journal by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Stewart: Has the United States Anti-Doping Agency Gone too far - Analyzing HAS THE UNITED STATES ANTI-DOPING AGENCY GONE TOO FAR? ANALYZING THE SHIFT FROM 'BEYOND A REASONABLE DOUBT' TO 'COMFORTABLE SATISFACTION' I. INTRODUCTION: WHERE DID ALL THE HYPE ABOUT DOPING COME FROM? Doping, the use of illicit drugs for body enhancement, is a per- vasive and perplexing problem in the modern sporting arena.' Un- fortunately, doping has left professional bodybuilding and landed in America's backyard. 2 In 2003, four percent of twelfth graders admitted to trying steroids, translating into nearly 300,000 students between eighth grade and high school. 3 The number of athletes caught using steroids and sanctioned soared in recent years. 4 The variety of drugs on the market and the difficulty in testing leaves sports officials in a quandary on how to best proceed in this difficult territory.5 Currently, there is no standard in drug testing between sports, leaving spectators disgruntled with superhuman perform- 1. See BARRIE HOULIHAN, DYING TO WIN 56 (2d ed. 2002) (analyzing spread of doping practices and encompassing existence in sporting events). There is an un- ending search for new doping products and techniques. See id. Doping knows no boundaries and branches out to new sports and activities. See id. For a further discussion of what constitutes doping, see infra note 15. 2. SeeJerry Adler, Toxic Strength, NEWSWEEK, Dec. 20, 2004, at 45 (discussing spread of drug use in children and widespread use in sporting icons). For a fur- ther discussion of the effects of doping by sports icons on children, see infra notes 237-40 and accompanying text. 3. See Adler, supra note 2, at 45 (illustrating seriousness of drug problem in youth in United States). Experts call the effects of doping on youth sports a "bur- geoning epidemic." Id. Doping is not limited to boys andjocks; girls and boys who are not athletic use steroids to get better bodies. See id. For a further discussion of the effects of doping by sports icons on children, see infra notes 23740 and accom- panying text. 4. See Tom Weir, Drug-Free Sports Might Be Thing of the Past, USA TODAY, Dec. 8, 2004, at 1A (describing escalating epidemic of drug abuse in sports). Testing has met some success, such as at the 2004 Olympics in Athens, "where 24 drug cheats were caught, a record for the Summer Games." Id. Experts predict, however, that the worst use of drugs in sports are yet to come and that the 2008 Summer Olym- pics in Beijing may demonstrate this concern. See id. 5. See Adler, supra note 2, at 47 ("[T]his does not begin to exhaust the list of performance-enhancing drugs in circulation. Human-growth hormone, thyroid hormones and compounds to enhance the oxygen-carrying capacity of blood are all available, albeit illegally, to professional and Olympic athletes; soon, gene ther- apy may make its mark on the record books."). For a further discussion of the amount of drugs used for doping, see infra note 15, and HOULIHAN, supra note 1, at 56. (207) Published by Villanova University Charles Widger School of Law Digital Repository, 2006 1 208 VILLNOVAJeffrey S. MooradSPORTS Sports & Law ENT. Journal, LAW Vol. JOURNAL 13, Iss. 1 [2006], Art.[Vol. 6 13: p. 207 ances and a lack of accountability. 6 For instance, when baseball player Mark McGwire broke the single-season home run record held by Roger Maris, he was taking androstenedione. 7 In an inter- esting contrast, prior to this, gold-medalist shot putter Randy Barnes received a lifetime ban from track and field for using the same drug." Doping in amateur and professional sports is a hotly contested issue in the media, legal circles, and even in Congress.9 This topic intensified acutely with recent scandals involving the discovery of an American drug ring and rampant accusations of drug use in base- ball.1 0 To unify the differing levels of monitoring, the international community adopted a standardized code of doping regulation.1 1 In August of 2004, the United States implemented this code for its Olympic athletes. 12 The most significant innovation in the 6. See Weir, supra note 4, at IA (discussing ramifications of drug use on specta- tors of baseball). It is unclear how much negative effect drug scandals had on baseball attendance, but in polls fans have voiced their dissatisfaction with current testing standards. See Eddie Pells, National Pastime Altered by Drugs, CBSNEWS.com, Mar. 31, 2003, http://www.cbsnews.com/stories/2003/03/31/health/printable 547007.shtml. Baseball's popularity is down, and fans chanting "steroids" might be an indication of how doping is perceived by the public. See id. For a further dis- cussion on the doping scandal facing baseball, see infra note 80. 7. See Weir, supra note 4, at IA (recognizing record was previously held by Roger Maris, set in 1961 when Maris hit 61 home runs). For a definition of andros- tenedione and other performance-enhancing drugs, see infra note 15. 8. See Weir, supra note 4, at IA (noting Randy Barnes won gold in 1996 shot put). One commentator reveals the unfairness doping presents, even between dif- ferent sports: [T] he most prolific chronicler of recent sports and pop culture history, David Wallechinsky - author of the Book of Lists and The Complete Book of the Summer Olympics ....[said], 'Randy Barnes, he got a lifetime ban for it .... McGwire got millions of dollars and became an American hero, and he was taking the same drug.... Personally, I felt a little furious. It was obvious that all these sluggers were taking steroids. Id. For a further discussion of the unfairness of doping to athletes, see infra notes 226-30 and accompanying text. 9. See generally Howard Fendrich, Congress Expects Policy Change, FoxSPORTS. COM, http://msn.foxsports.com/mlb/story/3471414?print=true (last visited Mar. 19, 2005) (indicating congressional dissatisfaction with current state of drug test- ing in professional sports, particularly baseball). The issue of doping in baseball has become so heated that Congress held hearings to assess the extent of the prob- lem, threatening to pass legislation to curtail doping. See id. For a further discus- sion of Congress's involvement in the baseball doping scandal, see infra note 80. 10. For a further discussion of the Bay Area Lab Co-Operative ("BALCO") raid and repercussions, see infra note 150 and accompanying text. For a further discussion of the baseball doping scandal, see infra note 80. 11. For a further discussion of the WADA Code, see infra notes 89-102 and accompanying text. 12. See U.S. Anti-Doping Agency, FAQs, http://www.usantidoping.org/re- sources/faqs.aspx (follow "Code" hyperlink; then follow "When does the Code be- come effective?" hyperlink) (last visited Feb. 13, 2005) [hereinafter USADA, Code https://digitalcommons.law.villanova.edu/mslj/vol13/iss1/6 2 2006] HASStewart: THE Has theU.S. United ANTI-DOPING States Anti-Doping AGENCY Agency GoneGONE too farToo - Analyzing FAR? 209 new code is the shift in the standard of proof for doping allegations from "beyond a reasonable doubt" to a "comfortable satisfaction."' 3 As a result, lawyers and athletes alike are yelling foul, fighting 4 against what they perceive as unfair and harsh regulations.' This Comment provides a definition and short history of dop- ing, as well as presents the roots of international regulatory organi- zations.' 5 It examines the role of the United States in internal FAQs] ("Many international federations implemented the Code effective Jan. 1, 2004 .... All international federations adopted and implemented the Code by Aug. 13, 2004, which was the opening of the 2004 Olympic Games."). 13. See World Anti-Doping Agency, World Anti-Doping Code, § 3.1 (2003), http://www.wada-ama.org/retcontent/document/code-v3.pdf [hereinafter WADA Code]. For a further discussion of the implementation of the WADA Code by the U.S., see infra notes 113-26 and accompanying text. For a further discussion about the "beyond a reasonable doubt" standard, see infra notes 120-23 and ac- companying text. 14. SeeJere Longman, Anti-Doping Agency Enters a Gray Area, N.Y. TIMES, May 27, 2004, at DI (detailing lawyer and athlete disgust at new USADA policies). Law- yers are concerned about how much evidence is necessary to find guilt in proceed- ings with the adoption of the new standard. See id. 15. See U.S. Anti-Doping Agency, Definitions, Medical, http://www.usantidop- ing.org/resources/glossary/medical.aspx (last visited Mar. 19, 2005) [hereinafter USADA, Medical Definitions] (listing of definitions of current substances used for doping). According to the World Anti-Doping Agency, "doping" is: the presence of prohibited substances in the body (except with permission prior to administra- tion); the attempted use of a prohibited substance; refusing to submit to testing or sample collection; failure to provide all necessary information on whereabouts and missed tests; tampering with any part of the process; possession of prohibited sub- stances; trafficking prohibited substances; or administration, or attempted admin- istration, of any prohibited substance into an athlete.
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